Like its federal counterpart, Texas Rule of Evidence 803(2) provides an exception to the rule against hearsay for an "excited utterance," i.e., "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."The rationale behind the excited utterance exception is that the stress of nervous excitement or physical shock stills the reflective faculties, thus removing an impediment to truthfulness. Based upon this rationale, I am not sure that I can agree with the recent opinion of the Court of Appeals of Texas, Texarkana, in James v. State, 2009 WL 3643554 (Tex.App.-Texarkana 2009).

Is the jury system broken? I've done several posts over the last year about how new technologies are causing (or should be causing) mistrials across the country. Back in March, I posted an entry about jurors improperly exchanging e-mails during trial and "wonder[ed] whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point."Later that month, I posted an entryabout mistrials being declared after jurors improperly used Googleand twitter to look up and communicate details about the cases they were hearing. In May, I posted an entry about a mistrial being declared after a witness engaged in text-messaging while he was on the witness stand. In Juneand October, I posted entries about attempts to reign in this type of jury conduct in Michigan and Oklahoma, and it appears clearer than ever that these attempts need to be redoubled because the hits just keep on coming.

Federal Rule of Evidence 801(d)(2)(E) provides that "[a] statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Rule 801(d)(2), however, goes on to provide that "[t]he contents of the statement shall be considered but are not alone sufficient to establish...the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E)."This latter sentence was the problem for the prosecution in United States v. Liera, 2009 WL 3617813 (9th Cir. 2009).

Steak Umm is a company that manufactures, advertises, and sells Steak Umm steak sandwich meat and hamburgers as part of frozen sandwich food kits (which I used to have when I was a kid but which I haven't had in years). It is also the owner of United States Registration Numbers 1,033,176 (“176”); 1,116,446 (“446”); and 2,375,933 (“933”) for the marks "STEAK-UMM," which were issued in 1976 for steak food products, 1979 for rolls, and 2000 for frozen sandwich kits, respectively. Meanwhile, Steak 'Em Up is a Pennsylvania corporation with its principal place of business, a restaurant, at 2600 South 11th Street in Philadelphia. Steak Umm has sued Steak 'Em Up, claiming that by using terms colorably similar to Steak Umm's marks, including "steak ‘em" or "steak ‘em up," Steak 'Em Up is infringing Steak Umm's marks. So, who will win the action? Who knows, but the case has already produced an interesting evidentiary ruling.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Rape shield rules prevent the defendant from presenting evidence regarding the alleged victim's other sexual behavior and sexual predisposition to prove that she consented to the sexual act at issue. Typically, these rules contain three exceptions. First, a defendant can sometimes present evidence regarding the alleged victim's other sexual acts close in time to the act at issue to prove that a person other than the defendant was the source of semen, injury, or other physical evidence. Second, a defendant can sometimes present evidence of other sexual acts between the alleged victim and himself to prove consent. Third, a defendant can sometimes present evidence of other sexual acts by the alleged victim if the court concludes that the exclusion of that evidence would violate the defendant's constitutional rights.

Upon reading the recent opinion of the Court of Appeals of North Carolina in State v. Oliver, 2009 WL 3350638 (N.C.App. 2009), I came upon a fourth exception which appears to be unique to North Carolina. Pursuant to North Carolina Rule of Evidence 412(b)(4), there is an exception to North Carolina's rape shield rule for "evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged." This post argues that this exception makes no sense, given the history of rape shield rules.

I have written four previous posts (here, here, here, and here) about court opinions and articles addressing the issue of whether police should be required to obtain a search warrant before attaching a GPS device to a suspect's vehicle Those posts analyzed precedent from across the country and concluded that most courts have found that nothing in the federal constitution requires the obtainment of a warrant but that certain protections in state constitutions could require a warrant. The latest court to address this question was the Supreme Judicial Court of Massachusettsin Commonwealth v. Connolly, 913 N.E.2d 356 (Mass. 2009), which found in dicta that a warrant is required.